Insane Clown Posse Can Proceed Against FBI

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By Patrick Gregory

Sept. 22 — The Insane Clown Posse music group and their fans have standing to sue the Federal Bureau of Investigation and Department of Justice on constitutional claims, the U.S. Court of Appeals for the Sixth Circuit held Sept. 17.

The ICP members and fans—known as “Juggalos”—sufficiently alleged reputational injury and police mistreatment based on a federal gang activity report, the court said in a decision by Chief District Judge Edmund A. Sargus Jr., sitting by designation from the U.S. District Court for the Southern District of Ohio.

The ruling reversed the district court's dismissal for lack of standing.

Injury in Fact 

The plaintiffs alleged that a federal report classified Juggalos as a “loosely organized hybrid gang,” the court said.

They alleged that the report caused state and local law enforcement to violate their First Amendment rights and right to due process under the Fifth Amendment, the court said.

Law enforcement officers detained the plaintiffs based on the report, the plaintiffs alleged. The ICP members also alleged that a performance was canceled at the request of police, the court said.

The court considered whether the plaintiffs alleged an “injury in fact” needed to establish standing, citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Here, the federal government argued that the alleged injuries were “too speculative and too generalized to establish an injury in fact,” the court said.

But “where claims of a chilling effect” on speech “are accompanied by concrete allegations of reputational harm, the plaintiff has shown injury in fact,” the court said.

Here, the plaintiffs alleged “concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations,” the court found.

Causation 

The plaintiffs also established the “ ‘causal connection' ” between the injury in fact and the defendants' alleged conduct needed for standing, the court found.

The injury must be “fairly traceable” to the alleged conduct, the court said. This is a “nebulous” standard “where causation means more than speculative but less than but-for,” the court said.

The government argued that the federal agencies didn't direct state and local law enforcement to detain the plaintiffs or cancel the concert, the court said.

But it's “possible to motivate harmful conduct without giving a direct order” to do so, the court said.

At the motion to dismiss stage, it was enough to allege that the report “was a motivating factor” in the actions of state and local law enforcement, the court held.

Redressability 

Finally, the plaintiffs needed to show that the relief requested would redress the harms alleged, the court said.

The government argued that an order declaring the report unconstitutional wouldn't redress the injury because some states have independently designated Juggalos as a gang, the court said.

Even if the harm wouldn't be completely redressed, “partial redress can also satisfy the standing requirement,” the court said.

Here, it was likely that the declaration sought would “combat at least some future risk” of reputational injury and chilled speech, the court held.

Judges John M. Rogers and David W. McKeague joined the opinion.

Miller, Canfield, Paddock and Stone PLC argued for the plaintiffs.

The DOJ argued for itself and the FBI.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com

Full text at http://www.bloomberglaw.com/public/document/Parsons_v_DOJ_No_141848_2015_BL_300838_6th_Cir_Sept_17_2015_Court.